Exclusive: Secretaries Of State Argue 9th Circuit ‘Erased’ Right To Remove Noncitizens From Voter Rolls

The 9th Circuit Court of Appeals’ “broad” reading of the National Voter Registration Act would “obliterate” the states’ constitutionally guaranteed authority over setting voter qualifications, the secretaries of state for three red states argue in an amicus brief filed Friday in arguably the next big election integrity case before the Supreme Court. RNC v. Mi Familia Vota is about to test whether states have the right to require documentary proof of U.S. citizenship to register to vote, and whether they can remove noncitizens from their voter rolls within the so-called “quiet period” 90 days prior to a federal election. Ultimately at issue is the power of the decades-old NVRA to override states’ rights in determining who can and cannot vote in state-run elections. “If the NVRA preempts States from imposing and enforcing a citizen qualification to vote in their elections, it creates serious constitutional doubt about the constitutionality of the NVRA itself,” the secretaries of state for Kentucky, Mississippi, and Nebraska argue in the friend-of-the-court brief. ‘The Ninth Circuit Was Wrong’ The Supreme Court will take up, and perhaps settle, the lingering NVRA issues it dealt with 13 years ago in Arizona v. Inter Tribal Council of Arizona. In that case, the court ruled that Arizona could not require proof of citizenship on federal election registration forms, on which individuals need only attest that they are U.S. citizens. But the ruling did not bar states from requiring proof of citizenship on state voter registration forms. Arizona’s election integrity laws allow applicants without proof of citizenship to register to vote in congressional races but not in presidential elections or by mail. Left-wing activists immediately challenged Arizona’s identification requirements, asserting that the laws violate the 1993 NVRA and disenfranchise voters who cannot provide documentary proof of U.S. citizenship. SCOTUS weighed in ahead of the 2024 election, granting a stay on a lower court decision that sided with the leftist groups but allowing individuals using the federal registration form to vote in the presidential contest and by mail. Republicans and election-integrity advocates argue that the 9th Circuit Court of Appeals “erased” a “constitutional boundary” in declaring Arizona’s election integrity laws unlawful. The secretaries of state note that the U.S. Constitution “confers upon States the authority to determine who is qualified to vote” through the voter qualification clause. “The Ninth Circuit was wrong in this case. States determine voter qualifications and perform voter list maintenance. Nothing in the National Voter Registration Act changed this longstanding tenet of federalism,” Nebraska Secretary of State Robert Evnen, told The Federalist exclusively in a statement. ‘That Power Can Never Be Taken Away’ Preventing voter fraud is clearly in the interest of the states and the federal government, or at least it should be. Arizona’s law requires election officials “to conduct recurring database checks” and remove confirmed noncitizens from its voter rolls. Democrats and their leftist “voter rights” groups believe such election integrity provisions amount to “voter suppression.” Contrary to the left’s assertions, noncitizens are showing up on voter rolls in larger numbers — and voting in federal elections. In July, New Jersey Democrat Gov. Mikie Sherrill was forced to acknowledge some 6,600 noncitizens had been discovered on the Garden State’s voter rolls, and hundreds had voted in recent elections. The amicus brief argues the 9th Circuit’s ruling unconstitutionally preempts Arizona’s laws and extends Arizona v. Inter Tribal Council of Arizona “well beyond” its intent, “collapses the distinction between registration and voting, and treats the NVRA’s 90-day removal safeguard as a prohibition on removing persons who were never eligible to register in the first place.” Democrats have furiously fought against election integrity measures like voter ID and proof of citizenship. The SAVE America Act, an election integrity measure vehemently supported by President Donald Trump, would do what Arizona law does on a national basis. Interestingly, leftists have attacked the SAVE America Act in part on a states’ rights argument and accused Trump of trying to “federalize elections,” giving the federal government election administration powers that the Constitution exclusively grants to the states. But Democrats have argued for federalizing voter qualifications through the NVRA and proposed sweeping election administration changes that would gut states’ voter ID requirements. The Constitution’s elections clause, the secretaries of state argue, “does not empower Congress to preempt voter qualifications enacted under States’ Qualifications Clause and Seventeenth Amendment authority.” So, if the NVRA can be employed to preempt any state from establishing and enforcing citizens’ qualifications to vote, that raises “serious constitutional doubt about the constitutional validity of the NVRA itself,” the amicus brief asserts. “The Constitution is clear: states determine who is eligible to vote in American elections and that power can never be taken away,” said Mississippi Secretary of State Michael Watson in a statement exclusively provided to The Federalist. He added that the 9th Circuit is attempting to enlarge a decades-old federal law to prohibit states from doing what they are constitutionally allowed to do — stop noncitizens from registering to vote and remove ineligible registrants from their voter rolls. Kentucky Secretary of State Michael Adams told The Federalist that “no court has the power to rewrite the law.” “With its ruling, the Ninth Circuit is trying to strip states of our traditional power over voter eligibility and hand it to Washington,” Adams said in a statement to The Federalist. “The Supreme Court should reverse the Ninth Circuit and affirm a power the states have held for 250 years.” Matt Kittle is a senior elections correspondent for The Federalist. An award-winning investigative reporter and 30-year veteran of print, broadcast, and online journalism, Kittle previously served as the executive director of Empower Wisconsin. ArizonaArizona v. Inter Tribal Council of ArizonaDemocratselection integrityElectionsGov. Mikie SherrillMississippi Secretary of State Michael WatsonNational Voter Registration ActNebraska Secretary of State Robert EvnenNinth Circuit Court of Appealsnoncitizen votingnoncitizensNVRAPresident Donald TrumpRepublicansRNC v. Mi Familia VotaRobert EvnenSAVE America ActSupreme CourtU.S. citizenshipvoter IDvoter registration